State of New York
Supreme Court : County of Monroe

Plaintiffs,

- against -

Index No. 944/91

Defendants.

_______________________________

REVISED MEMORANDUM DECISION

There is no dispute about the facts in this case. Plaintiff Wilbur McCloud was an employee of C.P. Ward, a contractor engaged by defendant Rochester Gas & Electric ("RG&E") to remove a damaged utility pole. On October 20, 1987, McCloud and a co-worker attached a stabilizing guy wire to the metal pole and McCloud began cutting through the pole with a torch. The metal was thick and slag accumulated at the cut. McCloud either hit the slag with a sledgehammer or adjusted the guy wire -- accounts vary -- and the cap at the top of the pole was dislodged and hit McCloud glancingly on the head. He and his wife sued for the consequent injuries, alleging a single cause of action in negligence.

The plaintiffs have now moved for partial summary judgment on a Labor Law § 240 (1) claim, and the defendants seek a declaration that the section is inapplicable on these facts -- tantamount to a cross-motion for summary judgment dismissing the claim. There is a threshold problem, however, for there are no Labor Law claims in the complaint. The original pleadings speak of common law negligence alone, although the bill of particulars states that sections 200, 240 (1) and 241 (6) were all violated. The function of a bill of particulars is to amplify the complaint; but since no statutory violations were pleaded in the complaint, the bill of particulars has nothing to amplify in this regard. It cannot serve as an amendment of the complaint.

Nonetheless, it is within the power of the court to amend the pleadings on its own motion, if the facts supporting an unpleaded cause of action are contained in the pleadings and there is no prejudice to the other party (CPLR 3025; see, Diemer v Diemer, 8 NY2d 206, 211 - 212; Dampskibsselskabet Torm A/S v P.L. Thomas Paper Co., 26 AD2d 347, 352; Family Finance Corp. v Secchio, 65 Misc 2d 344). The defendants have not raised any issue with respect to the pleadings and have met this motion on its merits. Indeed, it appears from the papers that both attorneys believed that the standard Labor Law violations had been pleaded. Since the defendants are obviously not prejudiced and because the complaint alleged the facts necessary to state causes of action under the Labor Law, the court hereby deems the complaint amended to include them and deems the answer amended to deny liability under them.

The sole issue at this stage of the litigation is whether the fall of the pole cap violates section 240 (1), for it can no longer be seriously maintained that the pole itself is not a "structure" within that section (see, Lewis-Moors v Contel of N.Y., 78 NY2d 942). While the statute speaks generally of hoists, stays, braces, pulleys and other safety devices, it has been interpreted to apply solely to gravity-based dangers arising in construction work, and been limited to cases where a worker falls from an elevated work site or is struck by an object falling from such a site (see generally, Rocovich v Consolidated Edison Co., 78 NY2d 509; Staples v Town of Amherst, 146 AD2d 292).

The Fourth Department has recently reiterated the requirement that the object be "falling from an elevated work surface" (Ruiz v 8600 Roll Road, Inc.,190 AD2d 1030, emphasis supplied; see also, Carringi v International Paper Co.,184 AD2d 137). In an earlier case difficult to distinguish from this one, a worker at ground level, demolishing a building by striking at it with a "highlift", was struck by a piece of debris from an upper portion of the building. The Fourth Department held that no liability attached under Labor Law § 240 (1):

The building itself did not constitute an elevated worksite, and thus plaintiff was not injured by an object falling from an elevated worksite (Krencik v Towne Red Hots, 171 AD2d 1033).

In only one recent case has the Fourth Department used the broader language "the risk of being struck by falling objects" (Fitzgibbons v Olympia & York Battery Park Co., 182 AD2d 1069), and the record in that case shows that the plaintiff was struck by part of the hoist itself which came loose as it was being used to raise material to the work surface. The hoist itself was defective, as evidenced by the accident, and the case fell squarely within the words of the statute as well as its judicial gloss. Indeed, the trial court's decision had stated:

Substantial evidence has been presented which shows that the plaintiff, Robert T. Fitzgibbons, Jr. sustained his injuries as a result of being struck by an object falling from an elevated work surface (Fitzgibbons v Olympia & York Battery Park Co., Sup Ct, Erie County, July 16, 1991, Fudeman, J., index No. 1283/88, emphasis supplied).

In spite of its equivocal language, Fitzgibbons cannot be read as extending the rule set out in the Krencik and Ruiz cases.

The plaintiff has claimed that the entire pole or its upper reaches were a work site, as RG&E workers had previously used a crane to disconnect the wires and other electrical fittings. This argument is without merit, as the elevated work had been concluded some time before the plaintiff began his task.

The facts in this case show no elevated work surface and no fall from one -- merely an object falling from a height. It thus lies outside the scope of section 240 (1). The plaintiffs' motion for partial summary judgment is denied, and the defendants' motion to dismiss the section 240 (1) claim is granted, with costs.

DATED: June 10, 1993

Andrew V. Siracuse, J.S.C.